Of Course, States Spy on States

Butch Bracknell - The most recent skirmish between US and People’s Republic of China (PRC) military forces occurred on August 19, when a Chinese J-11 fighter jet conducted reckless and confrontational maneuvers in close proximity to a US Navy P-8 anti-submarine warfare aircraft almost certainly engaged in intelligence gathering activities targeting PRC military forces.

The PRC aircraft’s aggressive maneuvering, which resulted in no damage to either aircraft but was illegal under international law, was reminiscent of the April 2001 collision caused by a People’s Liberation Army (PLA) F-8 fighter’s aggressive maneuvers close to an American EP-3 reconnaissance plane. The latter incident resulted in substantial damage to the American airplane, PRC detention of the American crew for 11 days, and almost certain compromise of troves of collected electronic intelligence. In December, a PRC naval vessel intercepted the American warship USS Cowpens in international waters, seemingly in retaliation for tracking nearby Chinese military vessels.

To prevent such incidents in the future, one scholar has proposed an elegantly simple, yet preposterous, solution: stop collecting intelligence against China. Following this prescription would not only be strategically foolish; it would be an abdication of the US government’s duty to its citizens.

In an essay so biased it might easily have been written by the PRC itself, Chen Dingding lays out three arguments for why American intelligence activities over international waters should cease. First, he attacks the American position that gathering intelligence in the airspace over international waters is legal under international law, observing that because something is lawful “does not mean it is ok [sic].”

He posits that the test should be whether “spying activities hurt or damage other countries’ national sovereignty or security.” Where that question is answered affirmatively, the law should prevent the activity.

Second, Chen advances an argument that freedom of navigation “must be limited to peaceful purposes” with “due regard for the interest of [coastal] states,” which he then loosely interprets as a norm against intelligence gathering. Next, he acknowledges Chinese ability to respond in kind by spying on the US, but posits that the existence of the “military technology gap” between the two nations creates an uneven playing field, calling the invitation to reciprocate intelligence gathering “disingenuous.” Finally, Chen ominously forecasts the PRC will “seriously consider setting up an air defense identification zone in the South China Sea.”

Chen’s first postulate is nothing more than wishful thinking. In fact, a cornerstone of the principle of legality on which the international order is based is that all state conduct is lawful and permitted unless it is specifically restricted by a norm of international law or the law of the state itself. States have unrestricted freedom of action vis-à-vis each other, except for where a customary international law norm has evolved preventing certain activities, such as slavery, or the states have agreed by treaty to limit their activities, such as the Geneva Conventions.

Outside the constraints imposed externally by international law, including treaty-based and customary international law governing the oceans and the airspace above, or internally by domestic law or self-restraint, states have absolute freedom to navigate the high seas and airspace. Moreover, this freedom to navigate through even the Exclusive Economic Zones (EEZs) includes the authority to conduct observations of other states in the interest of intelligence gathering, a traditional, sanctioned, and historic state activity.

For a state not to conduct intelligence operation against potential adversaries or regional rivals arguably could amount to a breach of the state’s duty to meet and defeat threats to the nation’s security and sovereignty. Chen’s argument is simply that China does not like it, so the United States should not do it: an unacceptable attempt to dictate outcomes at sea and in the airspace above the Chinese near abroad.

Chen’s second criticism proposes an unacceptably broad definition of acts in contravention to “peaceful purposes.” His theory that mere intelligence gathering by one state against another, not in a time of war, where no other rule of international law is being dishonored, violates international law is specious. Passive intelligence gathering - using nautical, aviation or other platforms to look, listen, measure, observe, and record the sights, sounds, and signals emanated by a rival military force - does not alone constitute the type of hostile act that would otherwise trigger a state’s right to self-defense.

Article 51 of the UN Charter provides states the “inherent right of individual or collective self-defence” in the case when an “armed attack” occurs. The definition of “armed attack” includes, of course, traditional attacks by the armed forces of one state against the territory of another state, and has evolved to encompass other modes of armed aggression, such as flying airplanes into buildings occupied by civilian noncombatants. There is a wide variance of opinion as to when a “cyber attack” (the definition of which is itself the topic of hotly contested debate) amounts to an “armed attack.”

Where there is no unanimity of opinion as to whether a cyber attack, which can easily manifest itself in terms of physical effects, damage or destruction, amounts to an armed attack, clearly passive intelligence gathering falls short of this threshold. There is nothing unpeaceful about preparing for conflict. In fact, good preparation may actually contribute to peaceful outcomes. Si vis pacem, para bellum - If you want peace, prepare for war.

Finally, the falsehood and insincerity in Chen’s third contention are palpable. Strong states seek strength to gain relative advantage over other states in international affairs. Such is the nature of political realism. If the United States has a comparative advantage over the PRC in terms of intelligence gathering, several outcomes are available to the PRC. They may live with it, compete with it, or counter it in other ways.

China has felt no need to restrain its own violation of World Trade Organization rules and American domestic law with regard to economic espionage in violation of international law, which may be part of a PRC strategy to compete with global technology and business leaders such as the United States. Moreover, for a state with a comparative military and intelligence disadvantage, China continues to act as a regional near-peer competitor with the United States.

American activities in the Chinese near-abroad are in full compliance with international law and are undertaken to advance America’s political and military interests in the region - which is the duty of America’s government in the same way that every government has the same duty to its people. Chen’s essay, written more from the point of view of a PLA public affairs officer than a neutral academic, does little to persuade readers regarding the legality, morality, or wisdom of US operations in the EEZs of regional states.

Of course states spy on other states - they always have, and they always will. The feigned outrage over traditional state intelligence gather activity is equally misplaced in the context of the PRC conducting unwisely aggressive military maneuvers, or in other context, such as European indignation over revelations of electronic intercepts of German political leaders . In fact, every thinking person with any realistic knowledge of how states behave would assume political espionage is occurring regularly, if they gave the question any thought at all. If PRC leadership wants to avoid future confrontations that could easily result in errors, loss of life, or equipment, political miscalculations and military tensions, Beijing should engage in the art of modern statecraft and compete with the United States like varsity-level actors. Chen’s argument about clearly lawful state activity - which roughly is congruent with the argument that would be made by an agent of the PRC itself - fails to acknowledge the reality of how major regional power states conduct international affairs on behalf of their constituent populations.

Butch Bracknell is a former career US Marine officer, an international law and security expert, and a member of the Truman National Security Project’s Defense Council. These opinions are his alone.–Diplomat